The police cannot force someone to talk and then use the answers against them; can environmental regulators do so?

The courts have always allowed them to. In 1969,the Ontario Court of Appeal convicted Strand Electric [1968 CarswellOnt 291, [1969] 1 O.R. 190, [1969] 2 C.C.C. 264] of failing to maintain a scaffold in good condition contrary to the Construction Safety Act. The only evidence against the company was an oral statement made by its supervisor to a government inspector, a statement that he was required to make under the Act. The Court ruled that since the Company had a legal duty to answer the inspector’s questions, its staff were obviously authorized to make the statement in question, and it was admissible against them.

At the time, the courts did not seem much troubled by compelling someone to answer questions, and then using the answers to prosecute them:

In Marshall v. R., … a case involving the admission, on a charge under the Criminal Code, of statements made by a motorist to a police officer, that he was obliged to make by reason of the then s. 110(5) of the Highway Traffic Act , Cartwright, J., now C.J.C., said …:

“It has long been settled that statements made under compulsion of a statute are not by reason of that fact alone rendered inadmissible in criminal proceedings against the person making them; it is sufficient on this point to refer to Walker v. R., ….

“[I]t is his duty under s. 110, to furnish the officer with such information concerning the accident as the officer may require, and the information which he gives in fulfilment of this duty can be used against him if he is tried for criminal negligence. If it is thought undesirable that such anomalies should exist, they can be removed only by legislative action.”

Since that time, many companies and individuals have been prosecuted and convicted of environmental offenses, based on oral and written statements that they were compelled by statute to make. Environmental laws — municipal, provincial, and federal — are replete with obligations to report and to confess regulatory breaches of all kinds. Recent amendments to the Environmental Protection Act and the Ontario Water Resources Act have broadened, even further, the powers of environmental officers to require individuals and companies to answer their questions (see section 157.0.1). But the admissibility of these answers in subsequent prosecutions should now be reconsidered.

In June, the Ontario Court of Appeal ruled that statements compelled by the Highway Traffic Act can no longer be used as grounds for a police officer to demand that a suspected drunk driver blow into a screening device, under the Criminal Code.

The key issue is whether statements compelled under the Highway Traffic Act, R.S.O. 1990, c. H.8 are admissible in a criminal trial. Specifically, are the statements admissible for the purpose of establishing that an officer had grounds to make an approved screening device demand, or does such use violates the right against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms?

The accused, Stephen Soules, had been involved in a motor vehicle accident. He therefore had a statutory obligation under the Highway Traffic Act to report the accident to a police officer, and to furnish the officer “with the information concerning the accident as may be required by the officer”. In response to police questioning, Mr. Soules identified himself as the driver of his vehicle. Mr. Soules testified that he answered this question only because he understood that he was required by law to do so.

The officer suspected that Mr. Soules had alcohol in his system and made an approved screening device demand, which Mr. Soules failed. He was arrested for operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood and subsequently failed two breath tests.

Mr. Soules was acquitted of drunk driving on the ground that his s. 7 Charter rights had been violated. Without the statutory compulsion, Mr. Soules would not have answered the officer’s question. Without Mr. Soules’ admission that he’d been the driver of his vehicle, the officer would not have had reasonable grounds to make the screening device demand. Without evidence that Mr. Soules had failed the screening device, the officer would not have had grounds to require him to give samples of his breath.

According to the Court, section 7 of the Canadian Charter of Rights and Freedoms guarantees all citizens the right to choose whether or not to speak with police. If they are stripped of their right to silence by statutory compulsion, their answers cannot be used against them in subsequent criminal proceedings and “exclusion of the evidence is compulsory”. If police wish to use information acquired from a motorist for criminal proceedings, “the information cannot derive from the duty of the motorist mandated by the statutory provisions”.

If statements made by statutory compulsion under the highway Traffic Act cannot be used against the author in a subsequent criminal prosecution, why should statements made by statutory compulsion under the Environmental Protection Act be admissible in a subsequent environmental prosecution? The penalties and other consequences can be at least as great. And surely the public interest in reducing carnage on the roads is comparable to the public interest in environmental protection. I look forward to the Court of Appeal answering this question.